2019: The Year Of The Investigation, From Mueller To #MeToo And Beyond

2019 is likely to stand out as the Year of The Investigation. From Special Counsel Robert Mueller’s probe to #MeToo cases that continue to dominate headlines, this year – like last year – will be consumed by high-profile investigations of powerful people.

For corporations facing a crisis, from executive misconduct to cybersecurity and privacy breaches, internal investigations are becoming more common. Handled well, they can help limit legal liability, manage regulatory oversight, and safeguard reputations. Recent investigations tell us much about the challenges that companies face in confronting serious accusations of misconduct and how to navigate them.

First and foremost, who conducts an investigation matters. Robert Mueller – a former Assistant Attorney General, FBI Director, and United States Attorney – was appointed because Department of Justice leadership determined that an investigation of such importance should be run by someone with impeccable credentials and a measure of independence from the normal chain of command. Similar to a company hiring an outside law firm, Mueller essentially was hired by DOJ as an outside investigator. And not for the first time. In 2015, while in private practice, Mueller was selected to supervise an outside investigation into the NFL’s handling of a domestic violence incident involving Baltimore Ravens running back Ray Rice.

Independence is also important. If a company performs its own internal investigation, some stakeholders may believe – rightly or wrongly – that the investigation may not be thorough or impartial. Such criticisms may come even if a company conducts the investigation via its usual outside counsel, which may be perceived as unwilling to bite the hand that feeds them. This has led some companies and organizations to seek an independent third party review when crisis looms.

Impartiality and independence are doubly important in the #MeToo era when top executives are being held accountable for behavior that, in the past, might have escaped consequences. An approach that might suffice to investigate allegations against middle managers might not serve a company’s or Board’s needs where a senior executive faces serious accusations.

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Second, the scope of an investigation has key consequences. Some have criticized Mueller’s investigation for purportedly looking beyond the 2016 campaign and investigating business transactions and other issues that predate it. In the corporate sphere, questions of scope are just as important. How far back in time should the investigation go? Should old allegations be reexamined to determine whether the subject of the investigation engaged in a pattern of misconduct, and to assess whether past victims received appropriate redress? Mueller himself knows that a narrow investigation can provoke criticism: in the Ray Rice investigation, some critics said the NFL and Mueller focused too narrowly on the Rice case rather than addressing more broadly the NFL’s response to domestic violence allegations.

Third, a lot may turn on what an investigation yields. Much ink has been spilled about whether Robert Mueller will write a comprehensive final report in 2019 and, if he does, who will see it. A corporate investigation may produce a similar report, in order to help a company determine what happened and how to respond, and as part of a defense in any subsequent litigation or public criticism.

No doubt a CEO accused of misconduct might wish to hide from public view such an account of his alleged transgressions. A company, however, may stand to gain a great deal through transparency, which could serve as a testament to its commitment to making things right.

Fourth, a company may ask its investigators to examine not only what did happen, but what should happen in the future. Mueller’s investigation may lead to a raft of legislative proposals to address perceived flaws in our legal system with regard to issues relevant to the investigation. Private companies should think in the same way. Do new guardrails need to be built in to reduce the risk of top executives committing sexual misconduct? Are reporting mechanisms sufficient to give victims a chance to raise complaints without fear of retaliation? A company should take the opportunity to review all relevant policies, practices, and trainings to reduce the chance that it will find itself in the same situation again.

Finally, it’s important to recognize the ways in which a corporate investigation is very different from Mueller’s efforts. Unlike private-sector investigators, the Special Counsel has subpoena power. He can force recalcitrant witnesses to pay a heavy price, including possible imprisonment, if they lie, refuse to talk to his team or fail to provide requested documents. A private investigator has a much smaller toolkit, often relying on voluntary cooperation and employment agreements to interview witnesses and develop facts.

As we embark on 2019, the reverberations caused by both Mueller and #MeToo show no signs of abating. Companies faced with allegations against top executives would do well to heed these lessons in this Year of The Investigation.